1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

George Street,

Petitioner Below, Petitioner

vs.) No. 18-0779 (Mercer County 12-C-60-DS and 18-C-29-DS) 

R.S. Mutter, Deputy Superintendent, 

McDowell County Corrections,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner George Street, by counsel Ward Morgan, appeals the Circuit Court of Mercer 

County’s August 22, 2018, order denying his petition for a writ of habeas corpus. Respondent R.S. 

Mutter, Deputy Superintendent, by counsel Abby G. Cunningham, filed a response.

1 On appeal, 

petitioner argues that the circuit court erred in denying his amended habeas petition on the grounds

of ineffective assistance of trial counsel; a disproportionate sentence; and lack of a knowing, 

voluntary, and intelligent guilty plea.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, 

a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the 

Rules of Appellate Procedure.

In June of 1999, petitioner was indicted on one count of first-degree murder for the shooting 

death of George Kennebrew. According to the record, in March of 1999, petitioner and the victim 

were both at a nightclub in Bluefield, West Virginia, when they engaged in a fight inside the club. 

Petitioner left the club and, thereafter, the victim and a group of others also left the club. Once 

outside, the group noticed petitioner “was in . . . the middle of the street coming from the library” 

before he “approached [the victim] with a small caliber handgun” and shot the victim in the 

stomach. The victim eventually died from the gunshot wound. 

During the criminal proceedings regarding this charge, petitioner was first represented by 

Teresa Sage, with Thomas M. Janutolo Jr. appointed as co-counsel. Several months later, Ms. Sage 

withdrew her representation and the court appointed Thomas L. Fuda to represent petitioner, with 

Mr. Janutolo continuing to serve as co-counsel. Relevant to petitioner’s arguments in this appeal, 

it is important to note that, prior to trial, petitioner’s counsel moved for a continuance based on the 

belief that the “defense may become one of self-defense,” which would require additional time for 

 

1Effective July 1, 2018, the correctional facility positions formerly designated as “wardens” 

are now designated “superintendents.” See W. Va. Code § 15A-5-3. 

FILED

January 17, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

preparation. 

In October of 1999, petitioner entered into a binding plea agreement whereby he would 

enter a plea of guilty to one count of first-degree murder in exchange for a sentence of life, with 

mercy. In obtaining a factual basis for the plea agreement, the following exchange occurred:

THE COURT: You did, in fact . . . , go get a handgun, come back and 

sho[o]t Mr. Kennebrew in the stomach?

[PETITIONER]: Yes, sir.

THE COURT: With the intent . . . to kill him?

[PETITIONER]: Yes, sir. 

At that time, the circuit court took the plea under advisement, pending the presentence 

investigation report. After reviewing the presentence investigation report in November of 1999, 

the circuit court accepted the plea and sentenced petitioner to a term of incarceration of life, with 

the possibility of parole. 

In October of 2006, petitioner filed a pro se petition for a writ of habeas corpus. Without 

appointing counsel or holding an omnibus hearing, the habeas court summarily denied the petition. 

Petitioner appealed that denial to this Court, which refused the same. 

In January of 2012, petitioner filed a second pro se petition for a writ of habeas corpus, 

wherein he alleged that counsel was ineffective for several reasons. After the appointment of 

counsel, petitioner filed an amended petition setting forth the following grounds for relief: (1) 

ineffective assistance of counsel related to counsel’s failure to address petitioner’s drug and 

alcohol use at the time of the offense and in regard to petitioner’s assertion of self-defense; (2) 

violation of state and federal constitutional rights due to a disproportionate sentence; and (3) the 

guilty plea was not knowingly, intelligently, and voluntarily made. Petitioner also asserted “all 

additional grounds raised in his Losh[2]checklist and original petition.” 

In October of 2012, the circuit court held an omnibus hearing, during which petitioner and 

only one of his three trial attorneys, Mr. Fuda, testified. According to Mr. Fuda, he did not serve 

as petitioner’s lead counsel due to health reasons. In fact, Mr. Fuda testified that he did not recall 

many relevant facts from petitioner’s case, other than it involved “a shooting outside of a bar.” 

Specifically as it relates to petitioner’s claims on appeal, Mr. Fuda testified that he did not recall 

whether he discussed potential defenses of voluntary intoxication or self-defense and that he did 

not recall whether he discussed the plea with petitioner, although he believed that Mr. Janutolo 

“took the lead” on the plea discussions. 

During his testimony, petitioner indicated that he was under the influence of alcohol and 

 

2Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981). 
3

cocaine during the commission of the crime. Although he testified that there were several facts he 

could not recall about the night in question, petitioner did testify that the victim stated “that he was 

going to ‘come get’” petitioner because of an earlier physical altercation inside the nightclub. 

According to petitioner, he feared for his life as a result of this comment, but he also admitted that 

he never saw the victim with a gun. Petitioner also testified that his trial counsel never discussed 

the issue of his voluntary intoxication or the possibility of self-defense, nor did his attorneys ever 

have him evaluated to determine his criminal culpability. According to petitioner, if he had known 

about other possible defenses, he would not have taken the State’s plea offer. Although petitioner 

could remember specifics from the night of the crime, including exactly what and how much he 

drank and arguing with the victim “over who had the most money,” he testified that he could not 

remember other specifics, such as who gave him the cocaine or who was present at the nightclub. 

Petitioner also testified that he did not have a gun in his possession when he went to the nightclub, 

but that someone gave one to him. However, when questioned about a contradictory statement he 

gave to a probation officer when completing the presentence investigation report, petitioner 

testified that he did not remember telling the probation officer that he took a .22 automatic firearm 

to the nightclub on the night of the shooting. 

After the omnibus hearing, the circuit court entered an order on October 25, 2013, denying 

the petition. The court addressed petitioner’s trial attorneys’ extensive work on the case by parsing 

out their billing statements. According to the order, petitioner’s attorneys spent over 200 hours 

working on petitioner’s case, with Mr. Janutolo alone spending approximately 110 hours working 

on the case outside of court. The billing records also indicate that Mr. Janutolo met with petitioner 

six times prior to the plea agreement, while Mr. Fuda met with petitioner four times. According to 

the court, “[a]ll of their fee petitions indicate numerous conferences with witnesses, the 

investigator, the medical examiner, and their expert.” Further, the court noted that the attorneys 

“retained the Boone Detective Agency, who billed for payment of 34.5 hours of investigation with 

associated travel of 408 miles.” Finally, the court confirmed that counsel retained an expert to 

perform forensic analysis of extensive physical evidence related to the crime. Thereafter, petitioner 

appealed the denial to this Court. However, before a judgment could be rendered, petitioner was 

released on parole and filed a motion to withdraw his appeal as moot. By order entered on May 

19, 2014, the Court granted that motion. 

At some point, petitioner was again incarcerated upon the first-degree murder charge. In 

May of 2018, he filed an amended petition for a writ of habeas corpus simply “incorporating by 

reference all the facts and preserving all issues raised in the appellate brief filed on his behalf” 

from the earlier denial of his habeas petition. Thereafter, the circuit court entered an order denying 

the petition that “reaffirm[ed] its prior findings” and “reiterate[d] the same” for purposes of appeal.

It is from the August 22, 2018, order denying him habeas relief that petitioner appeals. 

This Court reviews appeals of circuit court orders denying habeas corpus relief under the 

following standard: 

“In reviewing challenges to the findings and conclusions of the circuit court 

in a habeas corpus action, we apply a three-prong standard of review. We review 

the final order and the ultimate disposition under an abuse of discretion standard; 

the underlying factual findings under a clearly erroneous standard; and questions 
4

of law are subject to a de novo review.” Syllabus point 1, Mathena v. Haines, 219 

W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W. Va. 375, 701 S.E.2d 97 (2009). On appeal, 

petitioner first alleges that his counsel was ineffective in failing to investigate or inform him of 

two possible defenses—diminished capacity due to voluntary intoxication and self-defense—to 

the charge against him and that, had he been informed of those defenses, he would have proceeded 

to trial. Upon our review, however, we find no error in the circuit court’s denial of relief in regard 

to this claim.

The United States Supreme Court has recognized that “the right to counsel is the right to 

the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) 

(emphasis added). In determining whether counsel was ineffective, there are two essential 

elements that must be met:

First, the defendant must show that counsel’s performance was deficient. This 

requires showing that counsel made errors so serious that counsel was not 

functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. 

Second, the defendant must show that the deficient performance prejudiced the 

defense. This requires showing that counsel’s errors were so serious as to deprive 

defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes 

both showings, it cannot be said that the conviction . . . resulted from a breakdown 

in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687; see syl. pt. 5, State v. Miller, 194 W. Va. 3, 459 

S.E.2d 114 (1995) (adopting two-pronged Strickland test). As it relates to petitioner’s appeal, the 

Strickland test also applies to claims of ineffective assistance arising from counsel’s performance

in connection with a plea hearing as well as the sentencing stage of the proceedings. Hill v. 

Lockhart, 474 U.S. 52, 58 (1985).

In seeking to establish ineffective assistance, a petitioner must satisfy a “highly 

demanding” burden. Kimmelman v. Morrison, 477 U.S. 365, 383 (1986). Further, in regard to the 

element of deficient performance, the Strickland Court stated as follows:

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too 

tempting for a defendant to second-guess counsel’s assistance after conviction or 

adverse sentence [or guilty plea], and it is all too easy for a court, examining 

counsel’s defense after it has proved unsuccessful, to conclude that a particular act 

or omission of counsel was unreasonable. A fair assessment of attorney 

performance requires that every effort be made to eliminate the distorting effects of 

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to 

evaluate the conduct from counsel’s perspective at the time. Because of the 

difficulties inherent in making the evaluation, a court must indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance; that is, the defendant must overcome the presumption that, 

under the circumstances, the challenged action “might be considered sound trial 
5

strategy.”

466 U.S. at 689 (citations omitted). 

In regard to the element of prejudice, a “defendant must show that there is a probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Id. at 694. As a result, deficient performance alone “does not warrant setting aside the 

judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. However, 

upon review, the focus may not be entirely upon an “outcome determination;” instead, courts must 

make an additional determination that the actual result of the proceeding was “fundamentally 

unfair or unreliable.” Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). With the rigorous nature of 

the Strickland test firmly in mind, we address petitioner’s arguments.

Petitioner claims that certain factors, including his use of alcohol and cocaine on the night 

in question, the physical altercation inside the nightclub between petitioner and the victim, and the 

victim’s stated intention to “get” petitioner, all support his assertion that both a diminished capacity 

defense and self-defense were viable strategies below. Further, he argues that despite these facts, 

counsel failed to undertake a proper investigation of these defenses or otherwise discuss them with 

him. In his appeal, however, petitioner fails to even assert that he believes he had a valid 

diminished capacity defense due to voluntary intoxication. Instead, petitioner simply asserts that 

“he was a drug and alcohol user at the time of the offense” and that he “was intoxicated when he 

shot the victim.” Petitioner then goes on to cite authority discussing when diminished capacity and 

voluntary intoxication may be available defenses and how such defenses can establish that 

defendants are entitled to a conviction of a lesser-included offense, but fails to apply the specific 

holdings in those cases to the facts of his appeal. Instead, he simply asserts that trial counsel never 

“explored these issues” with him, “had him evaluated by an expert,” or “advised that his 

intoxication could serve as [a] defense to the . . . element of specific, premeditated intent.” 

This Court recently analyzed a similar issue in Lloyd v. Terry, No. 16-1166, 2018 WL 

1319187, at *6 (W. Va. March 14, 2018)(memorandum decision). In addressing the claims on 

appeal in Lloyd, the Court relied on Grayson v. Thompson, 257 F.3d 1194 (11th Cir. 2001), for 

guidance and noted as follows:

Grayson argued that his trial lawyer was ineffective for failing to develop evidence 

regarding his chronic alcoholism and intoxication at the time of the offense. The 

court advised that although the petitioner’s claim was that his trial counsel should 

have done something more, the inquiry under the performance prong of Strickland

was limited to whether the course of action followed by defense counsel was a 

reasonable one. [Grayson, 257 F.3d] at 1218-19. We agree.

Lloyd, 2018 WL 1319187, at *6. In that decision, the Court further noted that “Strickland itself 

involved . . . a claim that the defendant’s lawyer had been ineffective for failing to request a 

psychiatric examination of his client. Consequently, Strickland has a good deal to say about the 

‘duty to investigate’” generally and in the context of possible defenses. Id. Indeed, Strickland

provides as follows:
6

[S]trategic choices made after less than complete investigation are reasonable 

precisely to the extent that reasonable professional judgements support the 

limitations on investigation. In other words, counsel has a duty to make reasonable 

investigations or to make a reasonable decision that makes particular investigations 

unnecessary. In any ineffectiveness case, a particular decision not to investigate 

must be directly assessed for reasonableness in all the circumstances, applying a 

heavy measure of deference to counsel’s judgements.

[W]hen a defendant has given counsel reason to believe that pursuing certain 

investigations would be fruitless or even harmful, counsel’s failure to pursue those 

investigations may not later be challenged as unreasonable.

466 U.S. at 691. 

We find that the record simply does not support a finding that additional investigation into 

petitioner’s intoxication at the time of the crime was warranted.3 Although petitioner believes that 

his consumption of alcohol and cocaine was sufficient to entitle him to a diminished capacity

defense, he fails to assert that his level of intoxication left him “too drunk to be capable of 

deliberating and premeditating” such that his intoxication “may reduce murder in the first degree 

to murder in the second degree.” Syl. Pt. 2, in part, State v. Keeton, 166 W. Va. 77, 272 S.E.2d 817

(1980). Moreover, despite the fact that he asserts his use of drugs and alcohol as a potential defense, 

petitioner nonetheless was able to recall specific facts about the night of the crime, when they 

proved favorable to his arguments, many years after the fact. This includes petitioner’s assertion 

that he and the victim fought “over who had the most money,” that the victim threatened to “come 

 

3

It is also important to note that, contrary to petitioner’s argument, the record does not 

establish that trial counsel failed to investigate either a diminished capacity defense or a theory of 

self-defense, nor does it establish that counsel failed to discuss either defense with petitioner. As 

set forth above, petitioner was represented by three attorneys during his criminal proceedings, yet 

chose to call only one attorney, Mr. Fuda, to testify at the omnibus hearing. During his testimony, 

Mr. Fuda specifically indicated that, due to his health issues, Mr. Janutolo was lead counsel on 

petitioner’s case. This is supported by the attorneys’ billing requests for the case, in which Mr. 

Janutolo is shown to have submitted requests for substantially more hours working on the case 

than Mr. Fuda. Additionally, Mr. Fuda testified that he simply could not recall many of the 

specifics of petitioner’s case, given that his representation occurred approximately thirteen years 

prior to the omnibus hearing. While it is true that petitioner testified that his attorneys did not 

discuss these defenses with him, his self-serving testimony is insufficient to establish that such 

investigation or discussion did not take place, especially considering that the habeas court was not 

presented with any testimony from Mr. Janutolo, the lead attorney handling petitioner’s defense. 

In a habeas corpus proceeding, the “petitioner has the burden of proving by a preponderance of 

the evidence the allegations contained in his petition . . . which would warrant his release.” Syl. 

Pt. 1, in part, State ex rel. Scott v. Boles, 150 W. Va. 453, 147 S.E.2d 486 (1966). Despite the fact 

that the record does not sufficiently establish that petitioner has satisfied his burden in regard to 

his allegations about possible defenses, we nonetheless address these arguments on their merits 

more fully above. 
7

get” petitioner, that this threat was “severe[] enough” that petitioner “thought the decedent might 

kill him,” and that he did not bring a gun with him to the nightclub on the night in question. Simply 

put, there is no indication in the record that an investigation into a diminished capacity defense

was warranted, especially in light of the fact that petitioner’s attorneys met with him on multiple 

occasions and engaged in hundreds of hours of work in petitioner’s defense, including retaining a 

private investigator to support the defense. 

Similarly, the record is devoid of any evidence that suggests petitioner received ineffective 

assistance of counsel due to a failure to investigate a theory of self-defense.4It is true, as petitioner 

notes, that “[w]here a defendant has asserted a plea of self-defense, evidence showing that the 

decedent had previously abused or threatened the life of the defendant is relevant evidence of the 

defendant’s state of mind at the time deadly force was used.” Syl. Pt. 3, in part, State v. Harden, 

223 W. Va. 796, 679 S.E.2d 628 (2009). However, petitioner fails to acknowledge the following:

In determining whether the circumstances formed a reasonable basis for the 

defendant to believe that he or she was at imminent risk of serious bodily injury or 

death at the hands of the decedent, the inquiry is two-fold. First, the defendant’s 

belief must be subjectively reasonable, which is to say that the defendant actually 

believed, based upon all the circumstances perceived by him or her at the time 

deadly force was used, that such force was necessary to prevent death or serious 

bodily injury. Second, the defendant’s belief must be objectively reasonable when 

considering all of the circumstances surrounding the defendant’s use of deadly 

force, which is to say that another person, similarly situated, could have reasonably 

formed the same belief.

Id. In support of his subjective belief that deadly force was necessary, petitioner simply asserts 

that the victim stated he would “come get” petitioner after the altercation in the nightclub. Without 

any additional evidence or corroboration, petitioner asserts that this statement was “severe” enough 

that he believed the victim might kill him. Petitioner fails, however, to allege how his belief was 

objectively reasonable, especially considering the circumstances surrounding his use of deadly 

force. While it is true that the evidence on appeal is undisputed that petitioner and the victim 

engaged in a physical altercation inside the nightclub shortly before the shooting, petitioner ignores 

the overwhelming evidence regarding the actual shooting. By petitioner’s own admission, 

following the physical altercation, he left the nightclub, obtained a firearm, and waited for the 

victim to exit the building. When the victim and other eyewitnesses exited the club, they saw 

petitioner “in the middle of the street coming from the library . . . with a small caliber handgun,” 

at which point he shot the victim. Further, petitioner ignores his own admission that he did not see 

 

4Again, we do not agree with petitioner’s contention that the record establishes that counsel 

failed to adequately investigate a self-defense theory or otherwise discuss it with petitioner. As set 

forth above, petitioner’s attorneys specifically requested a continuance of trial because they 

recognized that self-defense could be an applicable theory and that it would require additional time 

for investigation. Given that the record shows that counsel identified the possibility of asserting 

this theory, coupled with their extensive investigation and work on the matter, it is reasonable to 

conclude that the attorneys thoroughly investigated this issue. However, we nonetheless address 

petitioner’s argument on the merits more fully above. 
8

the victim with a weapon of any kind, nor does he allege that, had he not used deadly force, the 

victim would have inflicted serious bodily harm upon him. Taken together, the facts of this case 

do not support a finding that, objectively, petitioner’s use of force under the circumstances was 

reasonable. Further, although “evidence that the decedent had abused or threatened the life of the 

defendant is nonetheless relevant and may negate or tend to negate a necessary element of the 

offense(s) charged, such as malice or intent,” petitioner again fails to assert how the victim’s 

purported threat to “come get” petitioner or evidence of their physical altercation could have in 

any way negated any evidence of an essential element of first-degree murder. Id. at 799, 679 S.E.2d 

at 631, syl. pt. 4, in part. In short, petitioner has simply failed to carry his burden of establishing 

that his attorneys should have investigated a theory of self-defense, given the facts of the case. 

Based on the foregoing, we decline to find that petitioner’s attorneys’ representation was 

deficient because they may have failed to investigate either a diminished capacity defense or a 

theory of self-defense, or otherwise advise petitioner that he may potentially be able to advance 

these defenses. This is especially true when considering that “if it is reasonable in the 

circumstances not to conduct a particular investigation, [a] lawyer’s failure to do so will not 

establish ineffective representation.” Lloyd, 2018 WL 1319187, at *7 (quoting Earl v. Israel, 765 

F.2d 91, 93 (7th Cir. 1985), cert. denied, 474 U.S. 951 (1985)). 

More importantly, petitioner is not entitled to relief because he has failed to satisfy the 

prejudice prong of the Strickland test. Petitioner’s only attempt to address this element is his selfserving assertion that “[h]ad these [defenses] been discussed with [him], he would not have 

accepted the plea.” This is simply insufficient to entitle him to relief. In order to satisfy the 

prejudice prong of Strickland, petitioner must demonstrate “there is a reasonable probability that, 

but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to 

trial.” Syl. Pt. 6, in part, State ex rel. Vernatter v. Warden, W. Va. Penitentiary, 207 W. Va. 11, 

528 S.E.2d 207 (1999). Beyond that, petitioner is required to “convince the court that a decision 

to reject the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, 

559 U.S. 356, 372 (2010). Most importantly, however, a “defendant’s mere allegation that he 

would have insisted on trial but for his trial counsel’s errors, although necessary, is ultimately 

insufficient to entitle him to relief. Rather, we look to the factual circumstances surrounding the 

plea to determine whether defendant would have proceeded to trial.” Lloyd, 2018 WL 1319187, at 

*8 (quoting United States v. Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002)). “And where, as 

here, ‘the alleged error of counsel is a failure to advise the defendant of a potential affirmative 

defense to the crime charged, the resolution of the “prejudice” inquiry will depend largely on 

whether the affirmative defense likely would have succeeded at trial.’” Id. (quoting Hill, 474 U.S. 

at 59).

As outlined above, neither defense was likely to succeed. Further, if petitioner had 

proceeded to trial, petitioner would have faced the possibility of life imprisonment, without the 

possibility of parole. In fact, at sentencing, the trial judge indicated that “[b]ased on my experience 

here, over this 18 years of trying a lot of cases, I think it would be a reasonably close case as to 

whether the jury would give mercy or not give mercy.” Given the uncertainty of whether petitioner 

would receive mercy at trial, coupled with the unlikely success of the defenses petitioner has 

identified, we cannot find that it would have been rational to reject the plea bargain. For these 

reasons, petitioner has failed to satisfy either element of the Strickland test and is entitled to no 
9

relief. 

In his second assignment of error, petitioner asserts that his sentence is disproportionate to 

the offense when considering his “youth and lack of a significant prior record.” We find, however, 

that petitioner has failed to carry his burden of establishing that he is entitled to relief. This Court 

has held as follows:

“In determining whether a given sentence violates the proportionality 

principle found in Article III, Section 5 of the West Virginia Constitution, 

consideration is given to the nature of the offense, the legislative purpose behind 

the punishment, a comparison of the punishment with what would be inflicted in 

other jurisdictions, and a comparison with other offenses within the same 

jurisdiction.” Syl. pt. 5, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 

205 (1981).

Syl. Pt. 4, State v. Shafer, 237 W. Va. 616, 789 S.E.2d 153 (2015). Further, 

[t]he Court uses two tests for determining whether a sentence violates the 

proportionality requirement set forth in our Constitution. State v. Mann, 205 W.Va. 

303, 314-15, 518 S.E.2d 60, 71-72 (1999). The first test is subjective and requires 

that the Court determine whether the sentence “shocks the conscience and offends 

fundamental notions of human dignity.” Syl. pt. 5, in part, State v. Cooper, 172 

W.Va. 266, 304 S.E.2d 851 (1983). If the Court decides that the sentence shocks 

the conscience, then the Court need not proceed to the second test. Mann, 205 

W.Va. at 315, 518 S.E.2d at 72. In determining whether a sentence shocks the 

conscience, we consider all of the circumstances surrounding the offense, the 

information contained in the presentence investigation report, and findings made 

by the trial court. State v. Phillips, 199 W.Va. 507, 513, 485 S.E.2d 676, 682 (1997). 

However, if the sentence is not subjectively unconstitutional, then the Court must 

proceed to examine the sentence using an objective test. Id. The objective test 

requires that the Court consider (1) “the nature of the offense,” (2) “the legislative 

purpose behind the punishment,” (3) how the punishment compares “with what 

would be inflicted in other jurisdictions,” and (4) how the punishment compares to 

the punishments of “other offenses within the same jurisdiction.” Syl. pt. 5, in part, 

Wanstreet, 166 W.Va. 523, 276 S.E.2d 205.

Id. at 622, 789 S.E.2d at 159. 

On appeal, petitioner provides no substantive argument in an attempt to address any of the 

factors outlined above. His entire argument consists of an assertion that the habeas court relied on 

factors identified by the trial court that he believes “suggest a violation of proportionality pursuant 

to Cooper.” While he cites relevant authority about how to determine if a sentence is 

disproportionate, he simply fails to provide any analysis regarding the subjective or objective tests, 

including a failure to address the nature of the offense, the legislative purpose behind the 

punishment, or how his punishment compares to other jurisdictions or other offenses within this 

jurisdiction. This Court has long held that
10

“[a] skeletal ‘argument,’ really nothing more than an assertion, does not preserve a 

claim . . . . Judges are not like pigs, hunting for truffles buried in briefs.” (Citation 

omitted). Moreover, as we held in Syllabus Point 2 of WV Dept. of Health & Human 

Resources Employees Federal Credit Union v. Tennant, 215 W.Va. 387, 599 S.E.2d 

810 (2004), “‘[a]n appellant must carry the burden of showing error in the judgment 

of which he complains. This Court will not reverse the judgment of a trial court 

unless error affirmatively appears from the record. Error will not be presumed, all 

presumptions being in favor of the correctness of the judgment.’ Syllabus Point 5, 

Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966).”

State ex rel. Hatcher v. McBride, 221 W. Va. 760, 766, 656 S.E.2d 789, 795 (2007). Accordingly, 

we decline to find that petitioner is entitled to relief on appeal, given his failure to analyze the 

appropriate factors that would entitle him to relief, if established. 

Finally, in his third assignment of error, petitioner asserts that he is entitled to habeas relief 

because his plea was not entered into knowingly, intelligently, and voluntarily. This assignment of 

error, however, is predicated entirely on his assertion that “trial counsel failed to adequately inform 

[him] of the potential legal impact of his intoxication” on his charge of first-degree murder “or the 

potential for a justification (self-defense) defense.” Because petitioner asserts that “[i]t was trial 

counsel’s duty to properly inform him of his legal defenses,” he argues that the habeas court should 

have granted him relief in this regard. We disagree. 

[O]n a direct appeal, as well as in a habeas corpus proceeding, before a guilty plea 

will be set aside based on the fact that the defendant was incompetently advised, it 

must be shown that (1) counsel did act incompetently; (2) the incompetency must 

relate to a matter which would have substantially affected the fact-finding process 

if the case had proceeded to trial; (3) the guilty plea must have been motivated by 

this error.

State v. Sims, 162 W. Va. 212, 219, 248 S.E.2d 834, 838-39 (1978). Having found that counsel’s 

performance relating to petitioner’s assertion of ineffective representation for failing to inform him 

of the defenses at issue was not deficient, and especially in light of our finding that these defenses

were not viable at a potential trial, we cannot find that petitioner is entitled to relief in this regard.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: January 17, 2020 

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison